Michelle G.,1 Complainant,v.Peter O’Rourke, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jun 20, 2018

0120162187 (E.E.O.C. Jun. 20, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Michelle G.,1
Complainant,

v.

Peter O’Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120162187

Agency No. 200I-0317-2010100673

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 26, 2016, final
decision awarding her compensatory damages in the amount of $30,994.90. The Agency issued
the award in accordance with a finding that it had denied Complainant a reasonable
accommodation in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the
Agency’s $30,994.90 award.

BACKGROUND

Complainant had filed an EEO complaint in which she set forth six separate claims of
discrimination, including a claim of discriminatory harassment that encompassed twenty-eight
incidents. In * * * v. Department of Veterans Affairs, EEOC Appeal No. 0120123071 (May 28,
2015), the Commission affirmed the Agency’s finding that it had denied Complainant a reasonable
accommodation in the form of a space heater between May 7, 2008, and August 10, 2011. This
was the only claim on which discrimination was found. As part of the order for relief, the
Commission directed the Agency to conduct a supplemental investigation into Complainant’s
entitlement to compensatory damages. In accordance with the Commission’s order the Agency
conducted a supplemental investigation and determined that Complainant was entitled to

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.

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$30,994.90 in compensatory damages. Of that amount, $994.90 represented reimbursement for
out-of-pocket medical expenses and the rest represented an award for non-pecuniary losses.

On appeal, Complainant contends that she is entitled to damages in the amount of $584,983.20.
Specifically, she claims entitlement to $284,983.20 for past and future pecuniary losses and
$300,000.00 for non-pecuniary losses, the maximum allowable under law. In support of her claim
for damages she has submitted as evidence: her own affidavit; statements from health care
providers; bills for treatment and medications; and other documentation.

ANALYSIS AND FINDINGS

When discrimination is found, the Agency must provide the Complainant with a remedy that
constitutes full, make-whole relief to restore her as nearly as possible to the position she would
have occupied absent the discrimination. See, e.g., Franks v. Bowman Transp. Co., 424 U.S. 747,
764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. U.S. Postal
Serv., EEOC Appeal No. 01933395 (July 21, 1994). Pursuant to section 102(a) of the Civil Rights
Act of 1991, a complainant who establishes unlawful intentional discrimination under either Title
VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., or Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
may receive compensatory damages for past and future pecuniary losses (i.e., out-of-pocket
expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish) as part of this “make
whole” relief. 42 U.S.C. § 1981a(b)(3). In West v. Gibson, 527 U.S. 212 (1999), the Supreme
Court held that Congress afforded the Commission the authority to award compensatory damages
in the administrative process. For an employer with more than 500 employees, such as the Agency,
the limit of liability for future pecuniary and non-pecuniary damages is $300,000. 42 U.S.C.
§ 1981a(b)(3).

We begin with Complainant’s claim for out-of-pocket medical expenses:

Expense Supporting Documentation Allowed?
$172.00 Cancelled check to psychologist for appointment made while
Complainant was without a reasonable accommodation.
Yes
$822.90 Physician’s charges for treatment of peripheral neuropathy linked to
Complainant not having a space heater between 5/2008 and 8/2011.
Yes
$1,313.00 Psychologist’s bill for 10 appointments and a disability report, none of
which were linked to the denial of reasonable accommodation.
No
$142.00 Statement from Complainant’s credit union reflecting payment to
Tampa Bay ENT - no reference to denial of reasonable accommodation.
No
$116.73 Statement from Complainant’s credit union reflecting payment to
Labcorp with information regarding the reason for this charge.
No
$78.49 Statement from Complainant’s credit union reflecting payment to
Emcare with no information regarding services provided.
No
$302.47 Payment to urology practice with no indication of the condition treated
or whether it was related to denial of reasonable accommodation.
No
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Various Proof of payments to Walgreens Pharmacy with no indications as to
what these bills represented.
No

On appeal, Complainant does not point to any evidence that specifically links any of these expenses
to the denial of her reasonable accommodation request. Instead, she argues, in a conclusory
fashion, that these expenses were for the neurological condition that was a proximate result of the
denial of reasonable accommodation. She also attributes these expenses to her work environment
without differentiating between the denial of reasonable accommodation and the five other
allegations of discrimination which resulted in a negative finding. We therefore find that the
Agency’s award of damages for Complainant’s out-of-pocket medical expenses was appropriate.

Beyond medical expenses, Complainant claimed additional out-of-pocket losses:

Expense Description Allowed?
$34,850.00 Loss of rental income beginning in March 2012 No
$65,000.00 Loss on sale of home on April 14, 2012 No
$11,896.00 Withdrawal from Thrift Savings Plan No
$23,212.80 Leave usage: sick leave – 51.00 hours; annual leave – 104.25 hours;
administrative leave - 283.50 hours
No

With regard to the first two items, Complainant argues, in essence, that she was forced to surrender
her rental property as a result of her disability-related termination, which occurred on February 7,
2012, and that the various statements submitted from her physician and psychologist establish that
her peripheral neuropathy, exacerbated by the Agency’s failure to provide her with a space heater
as a reasonable accommodation, was the proximate cause of her real estate losses. However, the
psychologist’s statements to which Complainant refers mention the distress of her work
environment in general rather than the denial of reasonable accommodation upon which the
Agency’s finding of discrimination rests. Appeal Exhibit (AE) 3; AE 4. A letter from
Complainant’s physician, dated May 27, 2015 does mention that Complainant’s mental illness
increased in severity in 2008 due to the denial of her reasonable accommodation, but this statement
was factored into Complainant’s award for out-of-pocket medical expenses. AE 5. Complainant’s
disability-related termination in February 2012 was attributable to numerous factors other than the
denial of her reasonable accommodation request, as evidenced by the five other claims and
multiple incidents of alleged discrimination. We therefore agree with the Agency that
Complainant has not established a causal relationship between the denial of her reasonable
accommodation request and her loss of rental income or her loss on the short sale of her home.

As to the withdrawal of funds from her Thrift Savings Plan, this occurred in March 2012,
approximately one month after her employment was terminated. Complainant contends on appeal
that the emotional and mental distress she had experienced as a result of being denied a reasonable
accommodation continued even after the accommodation was provided in August 2011 and after
she was terminated in February 2012, and that the statements from her psychologist and physician
establish the necessary causal relationship. The Agency responds that Complainant’s withdrawal
from her Thrift Savings Plan more likely than not resulted from the loss of rental income. Again,
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Complainant did not present enough evidence to isolate the denial of her reasonable
accommodation request as a cause of her losses from the numerous other possible causes of her
loss of employment and subsequent losses.

Regarding her use of leave, the reimbursement of sick leave and annual leave is an equitable
remedy to which Complainant would be entitled upon a finding of discrimination. Complainant
would still have to show, however, that it was more likely than not that her use of leave was
attributable to the denial of her reasonable accommodation request rather than to any of the
nondiscriminatory incidents identified in her complaint. On appeal, Complainant submitted a
compilation of leave she had taken between June 2010 and November 2011. This document shows
the type of leave taken and the dates upon which it was taken. AE 2. Those dates do not coincide
with the period during which she did not receive the space heater, which strongly suggests that she
needed to take leave for reasons other than the denial of her reasonable accommodation, namely
the stress she had been experiencing as a result of the numerous incidents other than the denial of
her accommodation request. We therefore find that the Agency’s disallowance of all of these
claimed past pecuniary losses was proper.

We now turn to Complainant’s claim for future pecuniary losses. Future pecuniary losses are
losses that are likely to occur after the resolution of a complaint. Alvina S. v. Environmental
Protection Agency, EEOC Appeal No. 0120151681 (Jan. 17, 2018) citing EEOC Enforcement
Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights
Act of 1991, EEOC Notice No. 915.002, at 9 (July 14, 1992) (hereinafter referred to as “Guidance
on Compensatory Damages”). Claims for future pecuniary losses, which are typically future
medical expenses, are normally supported with documentation of past pecuniary losses together
with an attestation that such losses are likely to continue for some time into the future.

In a letter dated June 15, 2016, Complainant’s psychologist stated that to provide optimal care for
Complainant, she would need to be seen on a weekly basis for at least the next three years, and
that the estimated cost of her treatment would be $33,750.00. AE 4a. As we previously stated,
however, Complainant would have to show that these losses are attributable not to all of the
incidents described in the complaint, but only to the denial of her reasonable accommodation
request that was found to be discriminatory. She has not done so. Consequently, we have no
choice but to disallow her claim for this expense.

Complainant also claims the following items as future pecuniary losses that allegedly occurred
during the 41-month period from April 1, 2012 to September 1, 2015:

Salary $186,763.20
Health Benefits $17,512.00
Leave: 1,228 hrs. annual; 626 hrs. sick. $66,735.80
Life Insurance Premiums $2,286.16
Thrift Savings Plan Contributions $2,379.64
Social Security Contributions $9,307.00

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Complainant mischaracterizes her claim. Each one of these items is a component of back pay, an
equitable remedy, not an element of compensatory damages. Complainant appears to be asking
for back pay covering the period between April 1, 2012 and September 1, 2015.2 This claim is
clearly beyond the scope of our order for relief in EEOC Appeal No. 0120123071, which does not
include a clause pertaining to back pay. Moreover, even if this claim was to be considered a claim
for future pecuniary losses, Complainant has not established the necessary causation chain linking
these losses to the discriminatory denial of her reasonable accommodation request.

We now turn to Complainant’s claim for non-pecuniary losses. Damage awards for emotional
harm are difficult to determine and there are no definitive rules governing the amount to be
awarded in given cases. A proper award must meet two goals: that it not be “monstrously
excessive” standing alone, and that it be consistent with awards made in similar cases. See Cygnar
v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989). As noted above, Section 102(a) of the 1991
Civil Rights Act authorizes an award of compensatory damages for nonpecuniary losses, such as,
but not limited to, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of
life, injury to character and reputation, and loss of health.

To receive an award of non-pecuniary compensatory damages, Complainant must demonstrate that
she has been harmed as a result of the Agency’s discriminatory action; the extent, nature and
severity of the harm; and the duration or expected duration of the harm. Complainant v.
Department of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), request for reconsideration
denied, EEOC Request No. 05940927 (December 8, 1995); Guidance on Compensatory Damages,
at 11-12, 14. Complainant is required to provide objective evidence that will allow an Agency to
assess the merits of her request for damages. See Complainant v. Department of the Navy, EEOC
Appeal No. 01922369 (January 5, 1993). Furthermore, the award should take into account the
severity and duration of the harm. Complainant v. Department of Agriculture, EEOC Appeal No.
01945652 (July 17, 1995). In determining compensatory damages, the Commission strives to make
damage awards for emotional harm consistent with awards in similar cases.

In this case, Complainant claimed $300,000 in non-pecuniary compensatory damages, the
maximum amount allowable by law. The recent case of Lauralee C. v. Dept. of Homeland
Security, EEOC Appeal No. 0720150002 (Sept. 25, 2017) is illustrative of the type and degree of
proof necessary to support a six-figure award for non-pecuniary losses. In Lauralee C., we
awarded the employee $200,000 for gender-based non-sexual harassment. Factors influencing the
award included: the employee’s extensive descriptions of symptoms, including constant crying,
inability to exercise, constant fear and anxiety, loss of trust in others, loss of consortium, and
numerous stress-related physical symptoms; duration up to three years; voluminous documentation

2 In clause (2) of our order in EEOC Appeal No. 0120123071, we noted Complainant’s
termination in February 2012. We also noted that Complainant successfully appealed her
termination to the Merit Systems Protection Board (MSPB) and was reinstated, presumably
effective September 1, 2015. Any remedies for her unlawful termination would have been
available through the MSPB process.

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that included diagnosis and prognosis reports and receipts for out-of-pocket expenses; and
similarity in circumstances to other cases in which we awarded between $150,000 and $200,000.

Complainant in this case likewise presents extensive documentation of the harm that she had
suffered. She averred that after the space heater was removed from her office in May 2008, her
legs became discolored and hardened, she could not feel her feet, and she would lose her balance
when she got up out of her chair due to loss of circulation, and that her condition persisted at the
time she left the Agency in April 2012. She further averred that the Agency’s refusal to let her
keep her space heater had exacerbated her neuropathy which, in turn, increased her anxiety and
depression. She stated that she became withdrawn, agitated, embarrassed to be around people, and
that she experienced physical symptoms, such as weight loss, skin breakouts, and hair loss.
Complainant’s husband sent a letter to the Agency attesting to the decline in his wife’s condition
over the three-year time frame in which she was without the space heater. AE 18. A note from
her treating physician dated May 3, 2010, indicates that Complainant had been using a space heater
at her desk for ten years to lessen the impact of her neuropathy and had recently been denied the
use of that heater. A statement from a second physician dated June 2, 2012, indicates that
Complainant had a history of anemia and peripheral neuropathy with her legs and feet remaining
cold at work. This doctor also noted that on an unspecified date, Complainant was given a
prescription for a portable space heater as an additional form of therapy. In a letter dated May 27,
2015, a third physician noted that Complainant’s mental illness increased in severity in 2008 due
to an extreme work environment, with denial of reasonable accommodation being emphasized.
This physician noted that she had taken Complainant out of work on numerous occasions between
2011 and 2012 due to exacerbated mental conditions, neuropathy, and migraines. AE 5. A Union
Representative averred that Complainant was the only employee who was not allowed to keep a
space heater at her desk. AE 10. Finally, Complainant’s sister provided a statement that
Complainant had a history of poor circulation with her legs and feet, and that after the space heater
had been removed from her work area, Complainant began to suffer from increased circulatory
problems. AE 15.

The critical factor that distinguishes this case from Lauralee C. is that the Agency’s acts of
discriminatory harassment in Lauralee C. were determined to be the proximate cause of the harm
suffered by the employee. In this case, there were numerous incidents that contributed to
Complainant’s suffering, and most of those incidents were found not to have resulted from
discrimination. With the exceptions listed above, Complainant’s healthcare providers did not
specifically identify the denial of Complainant’s reasonable accommodation request as the
proximate cause of the harm she suffered. The note from her treating physician dated May 3,
2010, stated that that her depression stemmed from race discrimination, which was alleged but not
found. In a note dated June 1, 2016, the treating physician indicated that Complaint was under his
care since 2009 for depression and anxiety, but did not identify the cause. AE 9. The third
physician noted in letters dated February 13, 2012 and May 27, 2012, that Complainant had
complained of worsening symptoms of depression and post-traumatic stress disorder, which had
been diagnosed before 2001. In a note dated February 13, 2012, the second physician noted that
Complainant’s environment had worsened to the point where she had to be removed from the work
environment for extended periods between October 2011 and February 2012, which was after she
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had been given her accommodation in August 2011. In notes dated February 7, 2012, May 10,
2012, and July 23, 2014, Complainant’s psychologist confirmed that Complainant’s work
environment had exacerbated her pre-existing conditions to the point where she suffered several
episodes of decompensation manifesting in depression and anxiety. AE 1; AE3; AE 4. In a letter
dated March 11, 2011, Complainant’s Hair Stylist stated that she had observed patterns of stress-
related hair loss when working with Complainant. AE 11. A letter from Complainant’s Pastor
dated December 18, 2011, indicated that Complainant had become depressed and had withdrawn
from church activities and positions but attributed this to Complainant’s general work environment
rather than to the denial of her reasonable accommodation request. AE 16.

In its final decision on compensatory damages, the Agency acknowledged that there was ample
evidence to substantiate Complainant’s physical and emotional distress. The evidence of
causation, however, is nowhere near as prevalent in the instant case as it was in Lauralee C.
Clearly some of the harm suffered by Complainant was attributable to the denial of her reasonable
accommodation requests. But most of that harm was attributable to the numerous incidents that
contributed to her hostile work environment which were not found to be discriminatory. We
therefore find that an award comparable to that of Lauralee C. would not be appropriate.

The Agency awarded Complainant $30,000, concluding that this was the dollar value of the harm
suffered by Complainant as a result of being denied the use of a space heater as a reasonable
accommodation between May 2008 and August 2011. Upon review of Commission precedent,
we find that that this award is appropriate given the nature and duration of the harm. We find that
this award is supported by the evidence, consistent with prior Commission precedent, and is neither
“monstrously excessive” nor the product of passion or prejudice. See Minna Z. v. Dept. of the Air
Force, EEOC Appeal No. 0720160009 (March 10, 2017) (award of $25,000 for failure to engage
in the interactive process to find the employee a reasonable accommodation where the employee
suffered from insomnia, depression, migraine headaches, anxiety, harm to her reputation, and
aggravation of pre-existing physical and mental conditions); Complainant v. Dept. of Agriculture,
EEOC Appeal No. 0120131896 (May 22, 2014), request for reconsideration denied, EEOC
Request No. 0520140443 (Feb. 6, 2015) (award of $30,000 where the employee’s own statements,
together with statements from his treating physician found sufficient to establish that the employee
suffered exacerbation of existing physical conditions, including lumbar disc disease, osteoarthritis,
and elevated cholesterol); Morgan v. Dept. of Agriculture, EEOC Appeal No. 0120101559 (Sept.
13, 2012) (award of $30,000 where Complainant was diagnosed with hypertension and high blood
pressure and he testified that his conditions worsened as a result of the Agency’s discrimination.
Complainant additionally testified that the discrimination caused harm to his career, status at the
Agency, reputation, personal friendships, and relationship with his wife and family); Moore v.
Dept. of Justice, EEOC Appeal No. 07A60017 (Oct. 17, 2006) ($32,500 award for nonpecuniary,
compensatory damages where complainant suffered from intense mental anguish, loss of
enjoyment of life, humiliation, injury to reputation, loss of self-esteem, a pronounced lack of
energy, and damage to familial relationships due to the Agency’s actions).

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Complainant also appears to be making a claim for attorney’s fees. However, she has not presented
any documentation to substantiate that legal services were provided in connection with the issue
on which she prevailed, namely reasonable accommodation.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s
final decision awarding Complainant $30,994.90 in compensatory damages.

ORDER

To the extent it has not already done so, within sixty (60) calendar days of the date that this decision
is issued, the Agency is directed to issue a check to Complainant in the amount of $30,994.90.

The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled “Implementation of the Commission's Decision.” The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The report
shall include supporting documentation verifying that the corrective action has been implemented.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)
Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its
compliance report within thirty (30) calendar days of the completion of all ordered corrective
action. The report shall be in the digital format required by the Commission, and submitted via the
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency’s report must
contain supporting documentation, and the Agency must send a copy of all submissions to the
Complainant. If the Agency does not comply with the Commission’s order, the Complainant may
petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant
also has the right to file a civil action to enforce compliance with the Commission’s order prior to
or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408,
and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on
the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp.
IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The Agency’s request must be
submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R.
§ 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint.
However, if you wish to file a civil action, you have the right to file such action in an appropriate
United States District Court within ninety (90) calendar days from the date that you receive this
decision. In the alternative, you may file a civil action after one hundred and eighty (180)
calendar days of the date you filed your complaint with the Agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in the complaint the person
who is the official Agency head or department head, identifying that person by his or her full name
and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or
“department” means the national organization, and not the local office, facility or department in
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which you work. Filing a civil action will terminate the administrative processing of your
complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

June 20, 2018
Date